Merhi v. Lowes Home Center, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIAS MERHI, et al, Case No.: 22cv545-LL-MMP

12 Plaintiffs LOWE’S HOME CENTER, ORDER GRANTING MOTION TO 13 LLC, WITHDRAW AS COUNSEL OF RECORD FOR PLAINTIFFS ELIAS 14 v. MERHI AND KIMBERLY 15 LOWE’S HOME CENTER, LLC, UNDERWOOD

16 Defendant. [ECF No. 76] 17

18 19 20 On March 5, 2025, Schneider Wallace Cottrell Konecky, LLP and SW Employment 21 Law Group, APC (collectively “Counsel”) filed a motion for leave to withdraw as counsel 22 of record for Plaintiffs Elias Merhi (“Merhi”) and Kimberly Underwood (“Underwood”). 23 ECF Nos. 76, 76-1 (“Motion”). Defendant filed a Statement of Non-Opposition to 24 Plaintiffs’ Motion to Withdraw as Counsel of Record. ECF No. 78. The Court finds this 25 matter suitable for determination on the papers and without oral argument pursuant to 26 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1(d)(1). 27 Counsel states that Merhi and Underwood’s “refusal to respond to any 28 communications has rendered it unreasonably difficult for counsel to carry out the effective 1 representation of these individuals.” Mot. at 5. Counsel attests that they made numerous 2 attempts—including eleven phone calls, emails, texts, and at least five voicemails—to 3 communicate with Merhi between November and December 2023 without success. ECF 4 No. 76-2, Declaration of Ori Edelstein (“Edelstein Decl.”), ¶ 7. Counsel received no 5 response even after they indicated to Merhi by email and letter on December 22, 2023 that 6 if they did not receive a response they would move to withdraw as counsel. Id. ¶ 9. Counsel 7 also attests that they made numerous attempts—including at least four phone calls, two 8 voicemails, three letters, and two emails—to communicate with Underwood between 9 November 2024 and December 2024, but received no response even though Counsel 10 indicated by letter sent on December 17, 2024 that they would move to withdraw as 11 counsel. Id. ¶¶ 8, 10. 12 “An attorney may not withdraw as counsel except by leave of court.” P.I.C. Int’l, 13 Inc. v. Gooper Hermetic, Ltd., No. 3:19-CV-00734-BEN-LL, 2020 WL 2992194, at *1 14 (S.D. Cal. June 4, 2020) (citation omitted). “The trial court has discretion whether to grant 15 or deny an attorney’s motion to withdraw in a civil case.” Osgood v. Main Streat Mktg., 16 LLC, No. 16CV2415-GPC(BGS), 2017 WL 7362740, at *1 (S.D. Cal. Mar. 27, 2017). “In 17 ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why withdrawal 18 is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm 19 withdrawal might cause to the administration of justice; and (4) the degree to which 20 withdrawal will delay the resolution of the case.” Laet Corp. v. Innovative Safety Tech., 21 LLC, No. 09-CV-1301-IEG POR, 2010 WL 444708, at *1 (S.D. Cal. Feb. 2, 2010). Courts 22 have previously held that “[f]ailure to pay attorney’s fees can be a valid ground for 23 withdrawal.” Id. at *2. Moreover, there is no danger of prejudice, harm to the 24 administration of justice, or undue delay where there are no immediately scheduled 25 hearings, the case is still in early stages, and the relevant party has had sufficient notice of 26 the intent to withdraw. See Guryev v. Legend Films, Inc., No. 09-CV-942-IEG (BGS), 2010 27 WL 2756944, at *1 (S.D. Cal. July 12, 2010). 28 1 A motion to withdraw must (1) be served on the adverse party and moving attorney’s 2 client and (2) include a declaration regarding service of the motion on those parties. 3 S.D. Cal. CivLR 83.3(f)(3). “Failure to make [service] as required . . . or to file the required 4 declaration of service will result in a denial of the motion.” S.D. Cal. CivLR 83.3(f)(3)(b). 5 The Court finds Counsel’s claims are valid reasons for withdrawal. Merhi and 6 Underwood’s cessation of communication with Counsel has made it unreasonably difficult 7 for Counsel to carry out the representation effectively. See Osgood, 2017 WL 7362740, at 8 *1 (granting counsel’s motion to withdraw due to defendants failing to pay legal fees and 9 refusing to communicate with counsel). Because the parties have already stipulated to 10 submit the claims of most of the plaintiffs to arbitration, there is no danger of prejudice to 11 other litigants, harm to the administration of justice, or undue delay. The Court finds it is 12 appropriate for Counsel to withdraw as counsel for Merhi and Underwood because the 13 relevant considerations weigh in their favor. Additionally, Counsel has met the 14 requirements of Civil Local Rule 83.3(f) by including a declaration regarding service of 15 the Motion on Merhi and Underwood and adverse parties. Edelstein Decl. ¶ 12. 16 Accordingly, the Court GRANTS Counsel’s Motion to Withdraw as Counsel of 17 Record for Plaintiffs Elias Merhi and Kimberly Underwood as follows: 18 1. On or before April 4, 2025, Counsel shall (1) serve a copy of this Order on 19 Merhi and Underwood and file proof of service with the Court and (2) inform Merhi and 20 Underwood of the contents of this Order by phone and email and submit a declaration of 21 having done so. 22 2. Merhi and Underwood may obtain other counsel or proceed pro se (without 23 counsel). On or before April 21, 2025, Merhi and Howard shall, separately, do one of the 24 following: (1) Merhi and Underwood’s new counsel shall file a notice of appearance, or 25 (2) Merhi and Underwood shall file a notice of their intent to proceed pro se and inform 26 the Court and opposing parties of their current address pursuant to Civil Local Rule 27 83.11(b). A failure to comply with this Order may result in dismissal of this action for 28 | || failure to follow a court order or failure to prosecute pursuant to Federal Rule of Civil 2 || Procedure 41(b). 3 IT IS SO ORDERED. 4 ||Dated: March 21, 2025 NO 5 Je J 6 Honorable Linda Lopez 5 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28